Transcript of Canadian Charter of Rights

and Freedoms
Interpreting the Charter of
Rights and Freedoms
Does the Charter apply?
Freedom of Expression
Section 15: Equality Rights
Limitations / Override of Charter Rights
Exclusions under s.24(2)
GOAL!
Canadian Charter of Rights and Freedoms
Navigating Charter Claims
Life, Liberty and Security of the Person
Exclusions under s.24(2)
Remedies under s.24(1) and s.52
So when does the Charter apply...???
Must ask BOTH:
1. Who can invoke Charter rights? Who benefits from
the Charter?
2. Who must act in accordance with the Charter?
Who is subject to the burden of the Charter rights?
Who can invoke Charter rights?
--> must look to the LANGUAGE of the Charter right
"Standing" to Bring a Charter Claim
Section 2.
Everyone
has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and other

media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Section 7.
Everyone
has the right to life, liberty and security of the person
and the right not to be deprived thereof except in
accordance with the principles of fundamental
justice.
Section 8.
Everyone
has the right to be secure against unreasonable
search or seizure.
Section 9.
Everyone
has the right not to be arbitrarily detained or
imprisoned.
Section 12.
Everyone
has the right not to be subjected to any cruel and
unusual treatment or punishment.
Section 15. (1)
Every individual
is equal before and under the law and has the right
to the equal protection and equal benefit of the law
without discrimination and, in particular, without
discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical
disability.
Section 17. (1)

Everyone
has the right to use English or French in any debates
and other proceedings of Parliament.
Section 23. (1)
Citizens of Canada
...have the right to have their children receive
primary and secondary school instruction in that
language in that province.
24. (1)
Anyone
whose rights or freedoms, as guaranteed by this
Charter, have been infringed or denied may apply to
a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in
the circumstances.
Everyone, anyone, any person...
Individuals...
Citizens and Permanent Residents...
Corporations (a summary)...
Burden of Charter Rights
Parliament or Legislature...
Courts...
Common Law...
Private Action...
15. (1)
Every individual
is equal before and under the law and has the right
to the equal protection and equal benefit of the law
without discrimination and, in particular, without
discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical
disability.

Applies to natural persons

Probably excludes corporations
Companies can still make s.15 arguments if charged
under an unconstitutional law that discriminates
against individuals (
Big M Drug Mart
)
Does not apply to human foetus
s.15 equality rights generally not applicable
s.3 voting rights, s.6 mobility rights and s.23 minority
education rights as corporations are not included in
current definitions of "citizen" in Canadian legislation
s.6(2) mobility rights (right to live and work in any
province)
Generally, a person need not be a Canadian citizen
to invoke Charter rights.
"Citizen" and "permanent resident" essentially carry
the meanings given to those terms by the federal
Parliament (e.g. immigration statutes).
"Citizen" is referred to in ss. 3, 6 and 23 of the
Charter.
Rights granted to "citizens" and "permanent
residents" do not extend to corporations.
"Permanent resident" is referred to in s.6(2) of the
Charter.
Generally include both individuals and corporations,
BUT some rights are only available to natural persons
due to the nature of the right
s.2(a) - freedom of conscience and religion
s.7 - life, liberty and security of the person
s.9 - arbitrary detention and imprisonment
s.10 - rights upon arrest or detention
s.11(c) - rights against complusion as witness against
oneself

s.11(e) - right to reasonable bail

s.13 - right against self-incrimination
s.14 - right of witness to interpreter
Examples of rights not available to corporations:
s.2(a) - freedom of conscience and religion
s.7 - life, liberty and security of the person
s.9 - arbitrary detention and imprisonment
s.10 - rights upon arrest or detention
s.11(c) - rights against complusion as witness against
oneself
s.11(e) - right to reasonable bail
s.13 - right against self-incrimination
s.14 - right of witness to interpreter
BUT REMEMBER - Charter rights can be invoked if
company charged criminally pursuant to an
unconstitutional law (see Big M Drug Mart)
The following Charter rights do not apply to
corporations:
Note: A human foetus is not a legal person therefore not entitled to Charter rights.
R. v. Big M Drug Mart
No one can be convicted of an offence under an
unconstitutional law
Even if a Charter right does not extend to
corporations, the corp. will still be able to rely on it as
a defence to a criminal charge laid under a law that
is invalid due to a constitutional defect
In this case, company invoked s.2(a) freedom of
religion as defence to a criminal charge of selling
goods on a Sunday, contrary to federal Lord's Day
Act.
Corporation successfully argued that law was
unconstitutional because it violated the freedom of
religion of individuals.

Singh v. Minister of Employment and Immigration

Anyone who entered Canada, no matter how illegally,
was instantly entitled to assert s.7 rights, which
apply to everyone.
Therefore... everyone who entered Canada and made
a refugee claim was entitled to a hearing before a
person with authority to decide the issue.
Rights that apply to "anyone" or "everyone" apply
regardless of legal status in Canada.
32. (1) This Charter applies
a) to the
Parliament
and
government of Canada
in respect of all matters within the authority of
Parliament including all matters relating to the Yukon
Territory and Northwest Territories; and
b) to the
legislature
and
government of each province
in respect of all matters within the authority of the
legislature of each province.
What does this mean...?
Any statute enacted by either Parliament or a
Legislature that is inconsistent with the Charter will
be:
outside the power of the enacting body (i.e. ultra
vires), and
invalid
The Charter acts as a limitation on the powers of
Parliament and legislature.

"Parliament" = federal legislative body as per

Constitution Act, 1867 (s.17) = three elements:
i) the Queen, as represented by the Governor
General
ii) the Senate
iii) the House of Representatives
"Legislature" = provincial legislative bodies
McKinney v. University of Guelph
Stoffman v. Vancouver General Hospital
Eldridge v. British Columbia
Does the Charter apply? Yes and No
Dolphin Delivery
: "Government" in s.32 meant only executive branch,
and did not include judicial branch.
Court order NOT governmental action
and therefore not subject to scrutiny of the Charter.
Here there was a
court order
, issued as a resolution of a dispute between two
private parties
, based on the
common law
, with
no government involvement
and
no statute
applying to the dispute.
If have purely private court proceeding governed by
statute
law, Charter WILL apply.
R. v. Rahey

: Delay in reaching a decision by the court (i.e. court

action) was a breach of s.11(b) of the Charter. Where
government is party
to proceeding (e.g. criminal cases), Charter WILL
apply.
"The courts, as custodians of the principles enshrined
in the Charter, must themselves be subject to
Charter scrutiny in the administration of their duties."
- LaForest J.
BCGEU v. British Columbia
: Where a court order is issued on
court's own motion
for public purpose, Charter WILL apply.

Does the Charter apply?

Hill v. Church of Scientology
Charter does not apply directly to the common law
(where no government actor is involved)
Must look at source of law
Indirect effect: Common law is to be developed in a
manner that is consistent with the principles of the
Charter.
See
Dolphin Delivery
,
Dagenais v. CBC
,
Hill v. Church of Scientology
Prof. Hogg's Conclusion: Exclusion of common law
from Charter review is not particularly significant.

When Charter does not apply directly, it will apply

indirectly. Other than some differences in the way s.1
justification is assessed, indirect application has
similar effect to direct application.
Plaintiff was private party bringing defamation action
to clear personal reputation, not in official
governmental capacity.
Common law governed the cause of action, not the
Charter.
Charter did not apply directly to the common law of
defamation.
It was still necessary to consider whether the
common law was consistent with Charter values and
to modify the common law if necessary.
Indirect application of Charter to common law
requires:
i) s.1 analysis is more
flexible in balancing
competing interests
ii) Charter
claimant bears the onus
of proving both
a) that common law fails to comply with Charter
values, and
b) when these values are balanced, common law
should be modified.
Does the Charter apply? - No
Charter regulates the relations between the govt and
private persons.
Charter does NOT regulate the relations between
private persons and private persons.
Private action is excluded from the application of the

Charter (
Dolphin Delivery
).
Examples of private action to which Charter does not
apply:
employer restricting employees freedom of speech or
assembly
parent restricting mobility of a child
landlord discriminating against tenant based on race
Parliament and the Legislatures cannot enact laws
inconsistent with the Charter. Therefore, any body
exercising statutory authority is also bound by the
Charter.
Government Action...
Statutory Authority...
Statutory authority = power of compulsion
Douglas/Kwantlen Faculty Association v. Douglas
College
Where the Parliament or Legislature has delegated a
power of compulsion to a body or person, then the
Charter will apply to the delegate.
Examples where Charter applied:
municipal by-law
made under statutory authority that prohibited
postering on municipal property
arbitrator
awarding remedy for unjust dismissal where
arbitrator was exercising powers conferred by statute
law society rules
that restrict entry of out-of-province law firms into
profession, based on exercise of statutory authority
auto insurance policy
that excluded common law spouses from accident

benefits, because terms of policy stipulated by

statute
private person making
citizen's arrest
, pursuant to statutory authority
Outside the sphere of government, the Charter will
only apply to persons or bodies exercising statutory
authority.
RWDSU v. Dolphin Delivery Ltd.
Summary of Charter Application Principles
Legislation = Government Action
Common law = NO Government Action
Government + Common Law = Charter Applies
Government + Legislation = Charter Applies
Private Party + Legislation = Charter Applies
Private Party + Common Law = No but Charter
values apply
Government of Canada and of each province...
Prerogative powers
Included in the term "government" are actions taken
by:
Governor General in Council or Lieutenant Governor
in Council
Cabinet
Individual Ministers
Public servants within government departments
Crown corporations and public agencies outside the

formal departmental structure, but which are

deemed to be agents of the Crown because of
substantial degree of ministerial control
General common law powers
Purolator
Supercourier
Dolphin
??
??
Issue:
Is secondary picketing by a trade union in a labour
dispute protected activity under s.2(b) of the
Charter?
Must ask:
Does the Charter apply to common law?
Does the Charter apply to private actors?
Issues:
i) whether the Charter
applies to universities
ii) if the Charter does apply to universities, whether
mandatory retirement policies
violate s. 15
iii) whether the limitation of the prohibition against
age discrimination in the Ontario
Human Rights Code
to persons between the ages of 18 and 65 violates s.
15
iv) if the limitation does violate s. 15, whether it is
justifiable under s. 1
as a reasonable limit on an equality right

Key principles:
Just because entity is creature of statute does not
mean its actions are subject to Charter.
Charter not intended to cover activities by nongovernmental entities created by government for
legally facilitating private activity.
Universities are statutory bodies performing public
service and may be subjected to judicial review, but
this does not in itself make them part of government
within the meaning of s. 32.
Public purpose test inadequate
Universities are legally autonomous, not organs of
government.
Universities were acting on their own initiative in
making collective agreements with employees- not
under any compulsion from govt.
Human Rights Code violated s 15 of Charter, but
upheld as reasonable limit under s.1
Mandatory retirement issue again
Decision:
Charter applied to the actions of the college in
negotiating and administering collective agreements
with association representing the teachers and
librarians
Rationale...
College board appointed and removable by the govt
Govt may at all times by law direct its operations
Board is part of the govt apparatus in both form and
fact
In carrying out its functions, the college is performing
acts of govt
Status of college wholly different from universities
which, though extensively regulated and funded by
govt, are

essentially autonomous bodies.

Mandatory retirement and age discrimination issue
again
Human Rights Act did not apply because not
employees of hospital
Decision:
Hospital not subject to the Charter with respect to a
mandatory retirement age for doctors
Rationale:
Hospitals are not part of govt in their day-to-day
operations. The provision of a public service, even
one as important as health care, does not
per se
qualify as a governmental function.
Issue:
Does the Charter apply to the decision not to provide
sign language interpreters as part of a publicly
funded scheme for medical care?
Is entity govt for purposes of s 32? Part of
fabric of govt
?
Look at whether the entity, either by
its very nature
, or by virtue of the
degree of govt control
exercised over it, can properly be characterized as
govt (apply
McKinney
and
Douglas College

)
Charter applies to ALL
Charter only applies to that ACT
If entity is part of "government"
If private entity acts for "government"
"Scrutinize quality of act, not actor"
Vriend v. Alberta
Generally, the Charter does NOT impose positive
duties to act on legislative bodies or governments.
However, where the legislature has enacted a fairly
comprehensive statute dealing with discrimination in
employment, but failed to include sexual orientation,
the court has found that the Charter does apply.
Alberta legislature had acted by enacting a
prohibition on discrimination in employment that
covered discrimination based on race, sex, religion,
disability, national origin, marital status and other
grounds.
Failure to afford homosexual people the same
protections = denial of equal benefit of the law =
violation of s.15 of the Charter
"Government" = legislative, executive, and
administrative branches (not court orders)
Charter does not apply to private actors.
Charter does not directly apply to the common law
unless it is the basis of some governmental action.
Even though Charter does not directly apply to the
common law absent government action, the common
law must nonetheless be developed in accordance
with Charter values.
Recap: Charter Application
So when does the Charter apply...???
Must ask BOTH:

1. Who can invoke Charter rights? Who benefits from

the Charter?
2. Who must act in accordance with the Charter?
Who is subject to the burden of the Charter rights?
Summary of Charter Application Principles
Legislation = Government Action
Common law = NO Government Action
Government + Common Law = Charter Applies
Government + Legislation = Charter Applies
Private Party + Legislation = Charter Applies
Private Party + Common Law = No but Charter
values apply
Class Exercise:
Social Networking at Universities
Origins of the Idea of Free Speech...
ancient Athens
Roman Republic
Protestant Reformation and English Parliamentary
Declaration of Freedoms, 1621
English Bill of Rights, 1689
French Declaration of the Rights of Man and of the

Citizen, 1789
Universal Declaration of Human Rights, 1948
International Covenant on Civil and Political Rights
(ICCPR), 1966
Rationale for Protecting Free Expression
Outside a Bill C-51 protest: Does this concern you?
instrument of democratic government
instrument of truth
See American literature -> John
Stuart Mill, Oliver Wendell Holmes
Why protect expression?
instrument of personal fulfilment
Freedom of Expression and the Charter
Section 2.
Everyone
has the following fundamental freedoms:
...(b) freedom of thought, belief, opinion and
expression, including freedom of the press and other
media of communication...
Two stages of Charter review:
i) Does the law or action have the purpose or effect
of limiting a guaranteed right? [i.e. Does the
law/action limit freedom of expression?]
ii) If yes, is it justified under s.1?
seeking and attaining truth
participation in social and political decision-making;
individual self-fulfilment and human flourishing

Irwin Toy v. Quebec

(1989)
Reasons for protecting free expression...
Canadian judicial perspective...
The core values which free expression promotes
include self-fulfilment, participation in social and
political decision-making, and the communal
exchange of ideas. Free speech protects human
dignity and the right to think and reflect freely on
ones circumstances and condition. It allows a person
to speak not only for the sake of expression itself, but
also to advocate change, attempting to persuade
others in the hope of improving ones life and
perhaps the wider social, political and economic
environment.
RWDSU v Pepsi-Cola
(2002)
What is "Freedom"?: Positive vs. Negative Rights
Negative right = freedom from govt interference in
the exercise of your expression -> inaction required
Positive right = obligation of govt to protect or
preserve the right -> action required
Freedom of expression s2(b) = negative obligation on
govt
See
Baier v. Alberta (2007)
for test for recognizing a positive right
What is "Expression"?
"Activity is expressive if it attempts to convey
meaning."
-Irwin Toy v. Quebec (1989)
"Expression" =

pretty much everything

, except purely physical activity that conveys no
meaning OR activity that is of violent form
Examples of expression:
all forms of art, including novels, plays, films, dance,
paintings and music
speaker's choice of official language - requirement
that commercial signs be in French only violated
s.2(b) in
Ford v. Quebec
(1988)
Act of parking a car to protest parking regulations,
example given in
Irwin Toy v. Quebec
(1989)
Content Neutrality
"It is, in my opinion, inappropriate to attenuate the s.
2(b) freedom on the grounds that a particular context
requires such...
...the large and liberal interpretation that is to be
given to freedom of expression [as elucidated in Irwin
Toy] indicates that the preferable course is to weigh
the various contextual values and factors in s. 1.
- Dickson J. in
R v. Keegstra
So CONTENT of expression is irrelevant to whether it
is "expression"!
Section 2(b) Claims: Two Stage Framework of
Analysis
1. Define the activity (any activity that conveys
or attempts to convey a meaning = expression).
2. Determine whether violation.

a) Content-based restraints
b) Effects-based restraints
Then proceed to s.1 analysis.
Content-Based Restriction
Laws or practices/actions that have, as their purpose,
the restriction of a particular type of expression.
Examples:
restrictions on advertising
restrictions on hate speech
law of defamation

Effects-Based Restrictions
Restriction is aimed at content itself.
Goal is suppression of the content.
Aimed at some other aspect of the activity (i.e. not
directed at the content of the expression) but which
nonetheless has an impact on expression.
Example: Law against littering
Exceptions???
Expression that takes the
form
of violence is not protected.
R. v. Keegstra
Saskatchewan v. Whatcott
Child pornography
= protected expression (limit upheld as reasonable
under s.1 though)
Hate speech
= protected expression (may be limited under s.1)

Threats
= protected expression
BUT...
Murder or rape
= not protected forms of expression
FORM over CONTENT for determining if expression
protected
Attorney General for Saskatchewan,
Attorney General of Alberta,
Canadian Constitution Foundation,
Canadian Civil Liberties Association,
Canadian Human Rights Commission,
Alberta Human Rights Commission,
Egale Canada Inc.,
Ontario Human Rights Commission,
Canadian Jewish Congress,
Unitarian Congregation of Saskatoon,
Canadian Unitarian Council,
Womens Legal Education and Action Fund,
Canadian Journalists for Free Expression,

 Canadian Bar Association,

Northwest Territories Human Rights Commission,
Yukon Human Rights Commission,
Christian Legal Fellowship,
League for Human Rights of Bnai Brith Canada,
Evangelical Fellowship of Canada,
United Church of Canada,
Assembly of First Nations,
Federation of Saskatchewan Indian Nations,
Mtis Nation Saskatchewan,
Catholic Civil Rights League,
Faith and Freedom Alliance and
African Canadian Legal Clinic
Interveners
Test for determining hate speech:
1. OBJECTIVE not subjective test - ask whether a
reasonable person, aware of the context and
circumstances, would view the expression as
exposing the protected group to hatred.
2. Hatred = extreme manifestations of the emotion
described by the words detestation and vilification.

3. Must consider the EFFECT of the expression, not its

inherent offensiveness. Look at whether it is likely to
expose the targeted person or group to hatred by
others.
R. v. Zundel
German Publisher known for Holocaust Denial.
Published a pamphlet called Did Six Million Jews
Really Die, a historical document of revisionist
nature.
Stated that the Holocaust was a myth perpetrated by
a worldwide Jewish conspiracy.
Issues:
1. Is s.281.2(2) of the Criminal Code an infringement
of freedom of expression as guaranteed under s. 2
(b) of the Charter?
2. If yes, can it be upheld under s. 1 of the Charter as
a reasonable limit prescribed by law and
demonstrably justified in a free and democratic
society?
Criminal Code s.281:
Every one who, by communicating statements, other
than in private conversation, wilfully promotes hatred
against any identifiable group is guilty of
(a) an indictable offence and is liable to
imprisonment for a term not exceeding two years; or
(b)an offence punishable on summary conviction.

Public school teacher in Eckville, Alberta

Taught conspiracy theory about Jews in class
Described Jews as people of "profound evil" who had
created Holocaust to gain sympathy
Charged under Criminal Code of Canada for
promoting hatred against an identifiable group.
Supreme Court of Canada ruling:
Hate speech against an identifiable group is
protected by Charter s.2(b)
Activity that conveys or attempts to convey a
meaning, through a non-violent form of expression =
"expression"
Section 2(b) protects all content of expression
Meaning of content irrelevant.
Criminal Code provisions = an infringement of s.2(b).
Hate speech = violent expression
Is there an infringement of freedom of expression? YES
Can the infringement be upheld under s.1? - YES
Supreme Court of Canada ruling, cont...
Crim Code provision is reasonable limit upon freedom
of expression.
Parliament's objective of preventing harm caused by
hate propaganda is of
sufficient importance
to

warrant overriding
s.2(b).
Provision is an acceptably proportional response to
Parliament's
valid objective
.
Rational connection
between criminal prohibition of hate propaganda and
objective of protecting target group members /
fostering harmonious social relations.
Provision does not unduly impair freedom of
expression.
Not overbroad or vague
. Captures only expressive activity which is openly
hostile to Parliament's objective. It excludes private
communications.
Effects of provision are
not of such a deleterious nature as to outweigh
any advantage from limiting s.2(b). Hate propaganda
contributes little to the aspirations of Canadians in
either quest for truth, promotion of individual selfdevelopment or fostering of a vibrant democracy.
Criminal Code provision:
Every one who wilfully publishes a statement, tale or
news that he knows is false and causes or is likely to
cause injury or mischief to a public interest is guilty
of an indictable offence and liable to imprisonment.
Issues:
1. Is s.181 of the Criminal Code an infringement of

freedom of expression as guaranteed under s. 2 (b)

of the Charter?
2. If yes, can it be upheld under s. 1 of the Charter as
a reasonable limit prescribed by law and
demonstrably justified in a free and democratic
society?
Does provision infringe s.2(b)? - YES
Can it be justified under s.1? - NO
Charter protects expressions of all non-violent form
Content is irrelevant, since s.2(b) is content neutral
Charter includes expression of minority belief even
where majority may find it false
Imprisonment for expression is unreasonable and
severe limitation s.7
Offence and punishment too draconian
Def'n likely to cause injury or mischief to a public
interest was too broad
Limitation of freedom of expression disproportionate
to objective envisaged
Could not be justified under s.1
Issues:
1. Does s.14 of the Sask. Human Rights Code infringe
freedom of expression as guaranteed under s. 2 (b)
of the Charter?

2. If yes, can it be upheld under s. 1 of the Charter as

a reasonable limit prescribed by law and
demonstrably justified in a free and democratic
society?
Saskatchewan Human Rights Code, Section 14
Prohibits display of any representation that exposes
or tends to expose to hatred, ridicules, belittles or
otherwise affronts the dignity of any person or class
of persons on the basis of a prohibited ground.
Sexual orientation included as one of the grounds.
Does Section 14 of the SHRC infringe freedom of
expression under s.2(b)? - YES
Can it be upheld under s.1? - YES
hate speech has expressive content
falls within scope of s.2(b) protection
Provision created by law to address a pressing and
substantial concern (i.e. effects on vulnerable
groups)
Provision in s.14 was rationally connected to
legislative objective
But wording of s.14 ridicules, belittles or otherwise
affronts the dignity of was constitutionally invalid overbroad - offending words removed
Minimal impariment of freedom of expression
Benefits outweighed the detrimental effects
Degrees of Protection
Core
High Low
Not all expression is equally worthy of protection
Not all infringements are equally serious
Freedom of Expression in the

Commercial Context
RJR-McDonald v. Canada
Canada v. JTI McDonald
Legislation prohibited all advertising and promotion
Could not be justified under s.1
Could not be considered the least drastic or intrusive
means of accomplishing the objective
Particularly since the ban on advertising captured
purely informational advertising
Therefore, legislation banning tobacco advertising
and requiring health labels infringes on s.2(b) and
cannot be saved by s.1 of the Charter.
Considerable deference to Parliaments chosen
means
Means must be carefully tailored to objective
Parliament may chose one of a range of reasonable
alternatives
High value/importance to the objectives of the act
(decreasing tobacco use and discouraging young
people)
Low value/importance to the commercial expression
that it limited (inducing people to engage in tobacco
use, for profit)
Law upheld as a reasonable limitation on commercial
freedom of expression.
Positive Rights: Baier v. Alberta
Greater Vancouver Transit Authority v. Canadian

Federation of Students
Wrapping it up...
Univ. of Calgary is not part of the gov't so as to make
all of its actions subject to the Charter (McKinney)
University is acting as agent of the provincial gov't in
providing accessible post-secondary education to
students in AB pursuant PSL Act (Eldridge).
Was University implementing a specific statutory
scheme or gov't program with respect to the actions
taken by it in disciplining the Applicants, making it
subject to the Charter?
In dictating terms upon which student may receive
education at a public institution, Univ. is performing
function that is integrally connected to the delivery
of post-secondary education as set out by the PSL
Act.
Charter does apply.
Disciplining students in the context education at a
public institution is different from hiring and firing of
employees by a university (non-gov't in nature) as in
McKinney.
3 FACTORS
claimant must show to establish a
positive right
:
1.Claim is grounded in freedom of expression
2.Substantial interference with 2(b) freedom
3.Government is responsible for the interference
FACTS:
Local Authorities Election Act (Alberta)
Teachers cannot run for ANY board or district
trusteeship while employed as a teacher - must take
leave of absence

SCC:
gov't has no positive obligation to provide a
statutorily-enabled platform of expression
s.2 imposes negative obligations - here right claimed
was a positive one
teachers could not show that their freedom of
expression was interfered with
Are BC Transit and TransLink Govt Actors?
See s.32 of Charter
BC Transit
= statutory body designated by legislation as an
"agent of govt" - cannot operate autonomously from
prov. gov't
TransLink
= not agent of gov't but substantially controlled by
local gov't entity (Greater Vancouver Regional
District)
Therefore, they are both government entities.
The Charter applies.
Is the claim dealing with POS or NEG rights?
Expression on Gov't Property
Section 1: Can infringement be upheld?
Transit argued that students claimed pos. right as in
Baier - seeking a platform for expression
Students argued that they wanted to express
themselves on an existing platform - neg. right
claimed
SCC:
Dealing with
neg. rights

here - Baier does not apply

Ads were rejected on basis of
content
(i.e. political) - NOT on basis that the advertising
services not available to the students
Careful not to confuse concept of underinclusive
platform for expression with gov't limits on
content
of expression
If expression is on gov't property, MUST ASK:
1. Do the proposed advertisements have
expressive content
that brings them within prima facie protection of s
2(b)? YES
2. Does the
method or location
of this expression remove that protection?
Historical or actual function of the place
Whether other aspects of the place suggest that
expression w/in it would undermine the values
underlying free expression

3. Do the transit authority

policies deny that protection
?-

YES
In this case, court found that no aspect of location
suggested that expression would undermine the
values underlying s.2(b). Opposite was true.
Prescribed by law?
- YES
If policies are purely administrative in nature (e.g.
indoor management) law for purposes of s. 1.
But where a policy is not administrative in nature, it
may be law provided that:
establishes a norm or
standard of general application
was
enacted by a govt entity
pursuant to a rule-making
authority
rule-making authority
exists if Parliament/prov legislature has delegated
power to the govt entity for the specific purpose of
enacting binding rules of general application which
establish the rights/obligations of those to whom
they apply
Valid objective?
- YES
Rational Connection?
- NO

Minimal Impairment?
- NO
Recap: Freedom of Expression s.2(b)
General Principles...
Class Exercise:
Human Skin as Canvas for Expression
Freedom of expression s.2(b) = negative obligation
on govt (see Baier v. Alberta for test re positive
obligations)
Activity is expressive if it attempts to convey
meaning (Irwin Toy).
Exceptions:
purely physical activity that conveys NO MEANING
activity that is of violent FORM
KEY:
CONTENT of expression is irrelevant to whether it IS
"expression"!
But FORM over content when looking at whether the
expression is PROTECTED!
See: Irwin Toy v. Quebec
Two Stage Framework of Analysis
1. Is it expression?
Define the activity (any activity that conveys
or attempts to convey a meaning = expression).
2. Was there a violation?
Did the govt restrict the expression? Look at:
Content-based restraints
Effects-based restraints
3. Section 1 analysis.

Was the infringement justified? Can it be upheld?

See: Irwin Toy v. Quebec
Don't forget to consider whether the Charter applies
first!
Life, Liberty and Security of the Person
Section 7:
Everyone
has the right to
life, liberty and security of the person
and the right not to be
deprived
thereof except in accordance with the
principles of fundamental justice
.
Who benefits...?
Applicable to
"everyone"
Every human being
physically present
in Canada, including immigrants (
Singh v. Minister of Employment and Immigration
)
Does
not
include
corporations
(
Irwin Toy
)
Does
not
apply to

feotus
Burden of s.7...?
Applies only to
"governmental action"
as per s.32 of the Charter
See Lecture: "Does the Charter Apply?"
What is the meaning of
life...?
liberty
:
are we really "free"...?
Preliminary considerations...
Must have
deprivation
of life, liberty or security of the person
Analysis does not end there... must show that denial
of that right is
contrary
to
principles of fundamental justice (PFJ)
precise scope yet to be defined
deprivation of life
rarely
happens as result of
direct
govt action
commonly see arguments about
indirect
govt action
Life can be
endangered
by:

excessive wait times

in health care system (
Chaoulli v. Quebec
)
extradition
to place where
death penalty
imposed (
US v. Burns
)
deportation
to place where individual at risk of
torture
(
Suresh
)
Physical
economic
political
Physical liberty
economic liberty
Section 7 liberty does:
not
include
property
rights
not
include freedom of
contract
not
include
economic
liberty

Summary
Lochner
and the American Experience
"Legal Rights" in the Charter
Comments from the Bench...
Fifth Amendment, U.S. Bill of Rights:
"No person shall...be deprived of life, liberty, or
property, without due process of law..."
Lochner v. New York
(1905)
law placing limit on number of hours worked struck
down as unconstitutional
Supreme Court enforcing laissez-faire economic
theory despite its rejection by elected legislators
overturned in 1937
Supreme Court now reluctant to review social and
economic regulation
Lamer J:
"...the restrictions on liberty and security of the
person that s.7 is concerned with are those that
occur as a result of an individual's interaction with
the justice system, and its administration."
(
Prostitution Reference
)
Siemens v. Manitoba
Irwin Toy v. Quebec
R. v. Edwards Books
and Art
Prostitution Reference
Gosselin v. Quebec
Singh v. Minister of Employment and Immigration

Implied right
to economic liberty =
end run
around the explicit exclusion property from s.7
Corporate activity NOT included
Liberty does NOT include the right to do business...
"To exclude all of these at this early moment in
history of charter interpretation seems to us
precipitous. We do not, at this moment, choose to
pronounce upon whether these economic rights
fundamental to human life and survival are to be
treated as though they are of the same ilk as
corporate-commercial economic rights."
Does not mean that no right with economic
component can fall within s.7
Lower courts
have found that economic rights = broad spectrum
of interests (rights to
social security
,
equal pay
for equal work, adequate
food, clothing and shelter
, traditional
property-contract
rights).
Wilson J: Section 7 could, in the right circumstance,
include things like standard of living, food, clothing,
housing, and social services.
Security of the person
province regulating video lottery machines

s.7 does not protect ability to generate business

revenue by ones chosen means
Right to life, liberty and security of the person
encompasses
fundamental life choices
not pure economic interests
Mussani v. College of
Physicians and Surgeons of Ontario
Liberty does not include the right to practice ones
profession freely
Regulation of trades and professions are not
restrictions on liberty
No constitutional right to practise profession without
being subject to rules and standards that regulate
that profession
Revocation of licence to practice medicine was found
not to deprive him of life, liberty, or the security of
person
What is deprivation...?
Any infringement of s.7 rights must be caused
by the state
Blencoe
: It was the
states processing
of the sexual harassment complaint that provided
the requisite
state action
for scrutiny.

Operation Dismantle
: Alleged threat of testing cruise missiles to s.7
interests was too
uncertain, speculative
and hypothetical
to sustain a cause of action under s.7.
Claims of deprivation depend on state action and
must be something more than mere speculation.
Principles of Fundamental Justice
Includes
freedom
from
physical restraint
.
Any law that imposes a penalty of
imprisonment
will involve a deprivation of liberty, and therefore
must conform to PFJ.
Other examples
:
statutory duty to submit to fingerprinting (
R v Beare
)
requirement to give oral testimony (
Thompson Newspapers
;
Stelco v. Can.
)
statutory provisions prohibiting loitering around

schools, playgrounds, public parks (

R v Heywood
)
Changes to
Parole Act
that could allow for continued detention (
Cunningham v Canada
)
Does not include:
Fines, unless there is possibility of imprisonment
Loss of driver's license (
Buhlers v BC
)
What about fundamental personal choices???
Blencoe v BC Human Rights Comm.
signaled shift to more generous approach
s.7 liberty interest no longer restricted to just
freedom from physical restraint
BUT although an individual has the right to make
fundamental personal choices free from state
interference, such personal autonomy is not
synonymous with unconstrained freedom.
Examples:
woman's right to abortion attracts s.7 liberty interest
(
Morgentaller
)
imprisonment for simple possession of marijuana

triggers s.7 scrutiny (

R v Malmo-Levine
) - but lifestyle of recreational marijuana use not
protected by the Charter
risk to
health
and
safety
(
Morgentaller
)
personal autonomy
(
Morgentaller
)
control
over one's
body
(
Rodriguez
)
serious
state imposed
psychological
stress (
New Brunswick v. G.(J.)
)
state induced psych stress can breach security of the
person but must have
sufficiently serious impact
(
Blencoe v. BC
)
Includes...

Examples:
womans right to choose to terminate her pregnancy
an individuals decision to terminate his/her life
right to raise ones children
ability of sex assault victim to seek therapy
confidentially
state imposed delays in access to abortions
delays imposed by waiting lists for medical treatment
(
Chaoulli v. Quebec
)
deportation to torture or death penalty countries
Bedford v. Canada
Chaoulli v. Quebec
QC social assistance scheme gave younger people
lower base amount of welfare benefits - to encourage
job training
s.7 right
not to be deprived
of life, liberty, security =
negative right
s.7
may be capable
of encompassing a positive right to basic subsistence
but such a development would have to

develop incrementally
as new issues arise for consideration
B.(R) v Childrens Aid Society Metro Toronto
Jehovah's Witness parents denied blood transfusion
for child
Right to nurture
a child, to
care for its development
, and to
make decisions
for it in
fundamental matters
such as medical care is part of the liberty interest of
a parent.
Liberty interest does extend to
parental decisions over medical care
.
Any state intervention to protect a childs interest
therefore must conform to principles of fundamental
justice.
In this case, wardship order was made in accordance
with PFJ.
s.2(b) everyone includes parents, who are directly
affected, so they have personal standing.
Charter Application
There is a law pursuant to which court acted. Gov't is
party to litigation. So Charter
will
apply.
Expression Analysis

s.2(b) protects all content of expression even if

repugnant. Here we could argue that there was an
attempt to convey meaning. So we
have expression
.
Form of violence not protected. If expression is
violent or abusive, not protected. But if not violence,
then its protected form of expression.
Upheld under s.1?
Court decision had effect of restricting expression
based on its reading of the statute
effects based restriction
Can argue for or against, but probably good idea to
restrict this form of expression
RECAP
Section 7: Right to Life, Liberty and Security of the
Person
Life
Law or state action imposes death or increased
risk of death
on a person, either directly or indirectly
Liberty
- Protects the right to make
fundamental life choices
free from state interference
Security of the Person
- Encompasses notion of
personal autonomy
, i.e. control over ones body free from state
interference
engaged by state interference with an individuals

physical or psychological integrity

includes state action that causes
physical or serious psychological suffering
Note: Concerns about autonomy and quality of life
have traditionally been treated as liberty and
security rights.
See
Carter v. Canada
(para.64)
Sex workers challenged Criminal Code provisions re
bawdy houses, living off the avails and solicitation
Court finds tha physical safety and well being are a
fundamental component of personal autonomy
Personal autonomy lies at heart of the right to
security of the person
Law essentially reduced the ability of prostitutes to
put measures in place to make themselves safer
while engaging in an otherwise lawful activity
As such, the law deprived them of their s.7 right to
security of the person
Meaning of "security of the person" defies exhaustive
definition - i.e. case by case consideration
Quebec law prohibited private health insurance,
despite the long wait times in the public health care
system.
Challenge by a doctor and a patient.
Quebec law prohibited access to private health care
while failing to deliver health care in a reasonable
manner.

Govt increased risk of complication and death.

Therefore, interfered with s.7 interests.
Lack of timely health care -->
death
--> s. 7 right to
life
Lack of timely health care -->
serious psychological and physical suffering
--> s. 7 right to
security of the person
There is a
serious issue
.
The claimants are
directly affected
or have
genuine interest as citizens.
There is
no other effective means
available to them.
Requirements for Public Interest Standing:
Section 7:
Everyone has the right to life, liberty and security of
the person and the right not to be deprived
thereof except in accordance with the
principles of fundamental justice
.
But
..."principles of fundamental justice" had no

established meaning in Canadian law...

Re B.C. Motor Vehicle Act
absolute liability
= no mens rea required, only proof of actus reus
strict liability
= no mens rea required, only proof of actus reus BUT
can argue honest and reasonable mistake of fact as a
defence
BC
Motor Vehicle Act,
s.94--> imposed mandatory minimum jail time for
absolute liability offence
only proof required = proof of driving
Key Points...
Absolute liability might offend PFJ
Absolute liability and imprisonment cannot be
combined.
Absolute liability offence in this case caused a
deprivation of liberty due to risk of imprisonment
"Natural justice" rejected because would narrow s.7
protections
Principles of fundamental justice are to be found in
the basic tenets of our legal system.
Rare that a s.7 violation will be upheld under s.1
Carter v. Canada
Right to life
is engaged
Liberty and security
of the person are engaged
Principles of Fundamental Justice: At a very
minimum, laws must not be:

Arbitrary
--> NO
Overbroad
--> YES
Grossly disproportionate
--> N/A
To make this determination, must first identify
objective of the law.
Section 1 analysis - violation of s.7
not justified
. There was a valid objective and rational connection,
but law was
not minimally impairing
.
Bedford revisited...
Arbitrariness
Whether the challenged law bears no relation to
legislative objective (e.g. deprivation of rights for no
valid purpose)?
Overbreadth
Does the law interfere with some conduct that bears
no connection to its objective?
Gross Disproportionality
Whether the deprivation of a persons s.7 rights is so
extreme as to be
per se
disproportionate to any legitimate govt interests?
Principles of Fundamental Justice considered:

Must examine the relationship between the

challenged provision and the legislative objective
that the provision reflects.
Laws relating to Bawdy Houses
=overbroad and grossly disproportionate! (
not
arbitrary)
Prohibition on Living on the Avails
= overbroad!
Communicating for the purpose of solicitation
=grossly disproportionate!
Section 1
laws not justified...
analytically distinct from PFJ analysis in s.7
1. They must be
legal
principles
2. There must be
significant societal consensus
that they are
fundamental
to the way in which the legal system ought to
operate.
3. They must be s
ufficiently precise
so as to yield predictable results when applied.
PFJs must have 3 characteristics:
The fact that a rule/principle is used as a rule or test
in common law or statute law = an important

indicator that it is a legal principle.

e.g.
Andrews v. Law Society
AG v. Law Society of BC
Section 7 Recap...
Equality Concepts
Section 15(1) Discrimination
Andrews v. Law Society of British Columbia
Auton v. British Columbia (Attorney General)
Hodge v. Canada
R v Kapp
Section 15(2) Ameliorative Purpose
Fundamental Freedoms: Equality Rights, Language
Rights, and Bill 101
Peter Tosh - "Equal Rights" (1977)
(1989)
Facts...
Issues...
Principles developed in Andrews...
15. (1) Every
individual
is equal before and under the law and has the right
to the equal protection and equal benefit of the law
without
discrimination
and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability.
Equality

before
and
under law
and
equal
protection
and
benefit of law
15(2). Subsection (1) does not preclude any
law, program or activity
that has as its object the
amelioration
of conditions of
disadvantaged individuals or groups
including those that are disadvantaged because of
race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability
.
Affirmative action
programs
Four equalities of section 15
equal
before
the law
equal
under
the law
equal
protection of
the law
equal
benefit of
the law
Canadian Bill of Rights s.1(b) guarantees equality

before the law.

Limited to
procedural
equality, not substantive.
Charter drafters hoped to avoid restrictive
interpretation from:
AG Canada v. Lavelle (1973)
Bliss v AG Canada (1979)
Asbolute Equality
Equality Law treating everyone equally
Every statute creates classifications to impose
burdens or grant benefits.
Examples:
Income Tax Act imposes
higher tax rate
on people with higher income than with lower
income.
Education Acts require
children to attend school
but not adults.
Legal
profession regulated differently
than accounting profession.
Notwithstanding subsection (1), section 15 shall not
have effect until
three years
after this section comes into force.
Section 32(2)
Degree of Deference...???
If

too deferential
to legislatures, s.15 would
lose serious
force, like the Canadian Bill of Rights.
But, if
every distinction
created by a statute
reviewed
by courts, would constantly involve the courts in
issues of
legislative policy
.
So reviewed almost every distinction created by law
and then upheld it.
Summary: Finding a Breach of s.15(1)
... a Two-Step Approach
1. Does the law create a
distinction
based on an
enumerated
or
analogous ground
?
2. If so, is
discrimination
established by showing that the
distinction
creates a
disadvantage
by
perpetuating prejudice or stereotyping

?
British citizen
and permanent resident of Canada
Oxford law graduate
met all requirements
for admission to BC Bar,
except for citizenship
s.42,
Barristers and Solicitors Act
denied admission to the Bar to non-citizens
of Canada
Permanent residents
wait
three years
before they can apply for Canadian citizenship
Andrews disputed citizenship requirement for
admission to the Bar and claimed s.42 violated s.15
of the Charter
(1) Does the
Canadian citizenship requirement
for admission to the British Columbia bar as set out
in s.42 of the Act
infringe or deny the equality rights
guaranteed by s. 15(1) of the Charter?

(2) If so, was that infringement

justified by s. 1
of the Charter?
Yes

No
Concept of Equality
discrimination
application to the facts...
A
distinction
, whether
intentional or not
but based on grounds relating to
personal characteristics
of the individual or group, which has the effect of
imposing burdens, obligations, or disadvantages
on such individual or group
not imposed upon others
, or which
withholds or limits access to opportunities, benefits,
and advantages
available to other
members of society.
Not
a
general guarantee
of equality

Concerned with the

application of the law
Comparative concept
, the condition of which may only be attained or
discerned by comparison with the condition of others
in the social and political setting in which the
question arises.
Every difference
in treatment between individuals under the law will
not necessarily
result in
inequality
.
Identical treatment
may frequently produce
serious
inequality
.
Main consideration =
impact
of the law
on the individual or group
Individual?
"Similarly situated test"...
equal protection and equal benefit =
people who are
similarly situated
should be

similarly treated
-andpeople who are
differently situated
should be
treated differently
BUT
would have justified Hitler's Nuremberg and
"separate but equal" in the US
REJECTED!
See: Bliss v. AG Canada (1979)
Distinction based on personal characteristics solely
by virtue of association with a group = likely
discrimination
Distinction based on individual merit or capacity =
rarely discrimination
Instead: Use
PURPOSIVE APPROACH
to
protect substantive rights
and
remedy unequal impact
flowing from the law.
Distinguishing feature of the Charter = consider
limits under s. 1
Analytically distinct
from equality analysis (note shift in burden of proof
to gov't in s. 1)
So...how to approach s. 15 analysis...? Ask:

1. Does the law create a

distinction
based on an
enumerated or analogous ground
?
2. If so, is
discrimination established
by showing that the distinction creates a
disadvantage
by perpetuating
prejudice or stereotyping
?
3. Can the discrimination be
justified under s. 1
?

approach to be taken
Yes
Law?
Yes - Barristers and Solicitors Act, s.42
Distinction?
Yes, legislative distinction between citizens and noncitizens
Based on enumerated or analogous grounds?
Yes, analogous ground of citizenship
Discrimination?
Yes, burden of denial of admission into law practice
placed on group based on personal characteristics

Saved under s. 1?
No, there is a valid objection but not rationally
connected or minimally impairing
(2004)
Parents sought funding for new kind of behavioural
therapy for autistic children
Argued that govt refusal to fund unjustifiably
discriminated
against them
Decision to fund non-core medical treatments was a
discretionary
one. Govt
does fund
certain
non-core
programs for
mentally ill
children and adults.
SCC applied
mirror comparator group approach
:
appropriate group for comparison was
person without mental disability
(so non-disabled or physically disabled person) who
seeks funding for non-essential treatment that is
emergent
or
only recently recognized
by medical field
Claimants said comparison should be with other

mentally disabled adults or children

On the comparison,
no distinction
established -> claim dismissed
Law v. Canada
(2004)
"The appropriate comparator group is the one which
mirrors the characteristics
of the claimant (or claimant group) relevant to the
benefit or advantage sought except that the
statutory definition
includes a personal characteristic that is offensive
to the charter or
omits a personal characteristic
in a way that is
offensive to the Charter
..."
Misidentification at the outset can doom the whole
s.15(1) analysis.
Widow was denied survivor pension claim
Had been in common law relationship for 20 years
and separated 6 months prior to death
comparator group chosen was "divorced spouses"
rather than "separated spouses"
therefore, no distinction found and claim dismissed
(separated spouses were entitled to pension
benefits)
(20??)
(1999)
Facts...
CPP survivor pension entitlement
Full rate --> over 45 or disabled or dependent

children
Reduction
--> able-bodied survivor between
ages 35-45
Nothing
--> able-bodied
under 35
Law is able bodied 30-yr old, claiming differential
treatment in pension eligibility discriminates on the
basis of
age
, contrary to s. 15.
Early men and women were equal, say scientists
Study shows that modern hunter-gatherer tribes
operate on egalitarian basis, suggesting inequality
was an aberration that came with the advent of
agriculture
http://www.theguardian.com/science/2015/may/14/ea
rly-men-women-equal-scientists
What is "equality"...?
At a minimum, equality encompasses the notion that
every individual is entitled to dignity and respect
and the idea that the law should apply to everyone in
an even-handed way.
Who should be equal to whom?
What constitutes equal treatment?
Does equality mean identical treatment?
How should we account for differences?
Should advantaged groups enjoy the benefits of
equality rights?
Are affirmative action measures that favour the
disadvantaged acceptable?

 Is it equality of outcome? Or equality of opportunity

that matters?
What are the proper comparisons to make...?
Aristotles conception: Individuals who are alike
(similarly situated) should be treated alike, and
persons who are not alike should be treated
differently in proportion to the difference.
Purpose of Section 15
Prevent the violation of essential human dignity
and to promote a society in which all persons enjoy
equal recognition at law as human beings or as
members of Canadian society, equally capable of
equally deserving of concern, respect and
consideration.
Human Dignity: Four Contextual Factors
the existence of pre-existing disadvantage,
stereotyping, prejudice or vulnerability
the correspondence between the distinction and the
claimants characteristics or circumstances
the existence of ameliorative purposes or effect on
other groups
the nature of the interest affected
Apply the
4 Law factors
to show that the distinction perpetuates
disadvantage and stereotyping.
3.
Section 1

analysis.
Even though law imposed a
formal and unequal distinction
on basis of age (an enumerated ground), it did not
violate s 15 b/c it
did not violate the human dignity
of those under age 45. Therefore, no substantive
discrimination.
Although law treats younger people differently, that
differential treatment does not reflect or promote
the notion that they are
less capable or less deserving of concern, respect
and consideration
.
Court was at a loss" to locate any violation of
human dignity.
Distinctions
do not stigmatize young persons
, nor can they be said to perpetuate the view that
surviving spouses under age 45 are less deserving of
concern, respect or consideration than any others.
Application to the Facts
Withler v. Canada (Attorney General)
(2011?)
Four Contextual Factors from Law
Existence of pre-existing disadvantage, stereotyping,
prejudice or vulnerability
Does claimant belong to group that has historically
been vulnerable or the subject of stereotyping and

prejudice?
If law has effect of further disadvantaging an already
disadvantaged group, then more likely to be D.
Correspondence between distinction and claimants
characteristics or circumstances
Does legislative distinction that is being attacked
correspond to actual needs, capacities or
circumstances of claimant?
If leg distinction is result of deliberate design, which
is not itself discriminatory but sought to take into
account claimant's traits or characteristics, more
difficult to establish D.
Existence of ameliorative purposes or effect on other
groups
Is impugned law actually aimed at improving
situation of group more disadvantaged than
claimant's group?
If law aimed at greater need than claimant's, then
less likely to be D.
Nature of interest affected
More severe and localized consequences of leg on
affected group = greater chance of D.
If fundamental interest at stake e.g. liberty of
physical integrity, more likely to find D.
D = discrimination
Apply 4 Law factors but these factors not fixed/not
to be rigidly applied
Particular disadvantage IS required
General disadvantage is NOT required
Discrimination must be on listed or analogous

grounds
Analogous grounds generally involve immutable
personal characteristics
Discrimination may be unintended
Discriminatory laws/actions/omissions may be saved
under s. 1
In Assessing Whether There is Discrimination:
Purposive and contextual approach - requires proof of
both differential treatment and substantive
discrimination on enumerated or analogous grounds
General Principles
Enforcement
Enforcement of guaranteed rights and freedoms
24. (1)
Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may
apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and
just in the circumstances.
Exclusion of evidence bringing administration of
justice into disrepute
(2)
Where, in proceedings under subsection (1), a court
concludes that
evidence was obtained
in a
manner that
infringed or denied
any rights or freedoms

guaranteed by this Charter, the evidence shall be

excluded
if it is established that, having regard to
all the circumstances
, the admission of it in the proceedings would
bring the
administration of justice into disrepute
.
Charter - Section 24
STANDING:
The
applicant's
rights or freedoms, as guaranteed by the Charter,
have been infringed or denied.
CONNECTION:
Evidence
was
obtained
in a manner that
infringed or denied
any
rights or freedoms guaranteed by the Charter.
DISREPUTE:
Having regard to all the circumstances, the
admission of the evidence in the proceedings would
bring the administration of justice into disrepute
.
ONUS:
Onus

on the
accused
to establish above (balance of probabilities).
The Basics...
What is the "remedy"...?
...
exclusion
of evidence (section 24(2)).
1. Was the
evidence
obtained in a manner that
infringed or denied
any rights or freedoms?
strict causal connection not required
must look at entire chain of events
generally,
temporal link
between Charter breach and discovery of evidence
will suffice
2. If yes, would the
admission
of the evidence bring the
administration of justice into disrepute
?
Section 24(2) operates only as an
exclusionary rule
(does not permit use of evidence excluded by
common law or statute)
TEST: Establish Connection and Disrepute
Was the evidence obtained in a manner that
infringed or denied any rights or freedoms?

Stage 1
First stage of the test will be met if:
o Charter
breach causes discovery
of the evidence
OR
o Charter breach cannot be said to have caused the
evidence to be discovered, but it is part of the
same chain of events
(
violation precedes discovery
of evidence and
temporal connection
is not too remote)
This will establish that the evidence was obtained in
a manner that infringed or denied charter right.
Making the connection...
temporal
tmp()r()l/
adjective
1. relating to worldly as opposed to spiritual affairs;
secular.
"the Church did not imitate the secular rulers who
thought only of temporal gain"
synonyms:
secular, non-spiritual, worldly, profane, material,
mundane, earthly, terrestrial
antonyms:
spiritual
2.

relating to time
.
"the spatial and temporal dimensions of human
interference in complex ecosystems"
synonyms:
of time, time-related
R v Strachan (1988)
Facts:
Police had valid search warrant pursuant to Narcotics
Control Act.
When police arrived, accused attempted to phone
lawyer.
Not permitted until police had matters under
control.
Search turned up drugs and accused arrested.
Not permitted to phone lawyer until taken to police
station.
Was the evidence obtained in a manner that
infringed accuseds s. 10(b) right to counsel?
Temporal Test
as opposed to a Causal Test
"So long as a
violation
of one of these rights
precedes the discovery
of evidence, for the purposes of the first stage of s.
24(2) it makes little sense to draw distinctions based
on the circumstances surrounding the violation or the
type of evidence recovered.

Suggests a
factual nexus
other than causation
between the breach & the discovery of the evidence
R v Grant (1993)
Police suspected G was growing marijuana in his
basement.
Searched perimeter of home without warrant.
Indications that basement was indeed being used to
cultivate something.
Based on this and some additional info police
obtained warrant.
Court:
Sufficient temporal connection
between warrantless perimeter search and evidence
ultimately found.
Police did not have enough evidence for search
warrant until after warrantless perimeter search
relied on that information to obtain warrant.
R v Burlingham (1995)
Facts:
B charged with murder and suspected in 2nd murder.
Repeatedly questioned even though asked for a
lawyer.
Police offered deal 2nd degree murder if told police
location of gun and other info re: 2nd murder.
B refused but police continued to badger told him
this was one-time deal.
B eventually gave in and gave full confession took
police to murder site and showed them where gun
hidden.

Later same day, accused recounted to girlfriend

events of the day and info hed given to police.
Bs stmt to g/f about directing police to murder site
and gun =
derivative evidence
flowing from his
confused state of mind
that
resulted from infringement
of his right to counsel.
Sufficient temporal connection
between violation of rights and stmt made to g/f.
R v Graham (1991)
Facts:
G was principal suspect in murder investigation.
Invited to police station for questioning (not under
arrest).
After extensive and oppressive questioning, he made
series of inculpatory stmts.
Arrested/charged w/ 2nd degree murder.
Advised of right to counsel at that point.
At 1st court appearance, spoke w/ duty counsel.
6 days later, undercover police officer put in same
cell. No coercion G made more incriminating stmts.
Next day, G spoke to sister of victim made further
inculpatory stmts (similar to stmts made to
undercover cop).
Issue: Is there sufficient temporal connection
between the infringement of G's rights and obtaining
the evidence (his incriminating stmts to cop and
victims sister)?

NO Lapse of almost a week

between Charter violation and inculpatory stmts
negated any temporal connection
.
If sufficient causal connection between breach of
Charter right and evidence found, then it should not
matter that discovery of derivative evidence is
temporally removed from the Charter breach.
If the other evidence is found independently,
unconnected both temporally and causally to the
charter breach, then s 24(2) not engaged.
If yes, would the admission of the evidence bring the
administration of justice into disrepute?
Stage 2
R v Collins (1987)
1. the nature of the evidence
2. the nature of the conduct by which the evidence
was obtained
3. the effect on the system of justice of excluding the
evidence
Test for determining
whether the admission
of evidence obtained in violation of Charter would
bring administration of justice into disrepute
involves looking at:
BUT test for disrepute reframed in R v Grant...
R v Stillman (1997)

Facts:
Brutal sex assault and murder
Accused was a young offender
Retained counsel immediately who advised police
that Stillman did not consent to the giving of any hair
samples, teeth impressions or statements.
Police ignored this and took the samples by force.
Continued to interrogate him as well. Stillman sobbed
throughout the interview.
At one point, blew his nose into a tissue - tested for
DNA.
ISSUE: Was any of the evidence obtained in manner
that infringed/denied Charter rights? Did the taking
of hair samples, teeth impressions and buccal swabs
contravene s.8 of the Charter?
Stillman cont...
Arrest was lawful
Search was not incidental to arrest - power of search
incidental to arrest does not extend to collection of
bodily samples
Very serious violation of s.8 rights in relation to the
samples that were forcibly taken
s.8 violation in relation to the discarded tissue? Cannot be said to relinquish privacy interests when in
custody (i.e. can't do anything else with the tissue)
R v Grant
Problems with Stillman...
R v Grant: A More Flexible Test
Application of the Stillman test...
Stage 1: Was there a Charter violation?
Stage 2: Would admission of the evidence bring

admin of justice into disrepute?

i) Seriousness of violation
no deliberate breach of Charter
no formal arrest/detention
officers were involved in proactive policing
ii) Impact of the breach
iii) Society's interest in adjudication
Application to the facts...
Charter was breached - evidence discovered as a
result
Three factors under 'disrepute' indicate admission of
evidence
Charter infringing police conduct was not egregious
or deliberate
Impact of Charter breach on accused's interests was
significant but not at most serious end of scale
Gun was highly reliable evidence
Looked at public interest in adjudication on the
merits
Evidence was admitted!
1.
seriousness
of the Charter infringing
state conduct
admission may send the message the justice system
condones serious state misconduct
2.
impact of the breach
on the Charter protected interests of
the
accused

admission may send the message that individual

rights count for little
3.
societys interest
in the
adjudication
of the case on its
merits
Evidence was conscriptive
Evidence not discoverable anyway
No DNA warrants
No independent source of info
Onus on Crown to show discoverability
Very serious Charter violation
Bodily Samples --> Not Admissible
Tissue --> Admissible
Evidence not conscripted
Evidence was discoverable
Violation of Charter rights not serious
Police in area concerned with drug dealing &
violence.
Observe Grant (young black man) who apparently
just stared at them as they drove past. Police say he
looked fidgety.
Uniformed officer started talking to Grant and asking
questions. Grant adjusted his jacket and in response
officer told him to keep his hands in front of him.
Two other officers joined the first officer. Did Grant
think he was detained? Right to counsel at this

stage?
Officers continued questioning. Admits to firearm and
small bag of weed.
Facts
First stage of Stillman required consideration of
NATURE of evidence
Led to discussions of conscriptive and derivative
evidence
Unpredictable results - evidence routinely excluded
without consideration of the other two factors
Whether evidence was conscriptive was largely
determinative
BUT s.24(2) requires "all the circumstances" to be
taken into account!
Charter rights in question:
Right not to be arbitrarily detained
Right to counsel
Psychological detention = person has a legal
obligation to comply with a restrictive
request/demand
or reasonable person would conclude by reason of
the state conduct that no choice but to comply
Encounter with Grant = interrogation = clear Charter
violation
See R v Calder (1996):
Sopinka --> yes but only in very limited
circumstances (circumstances not articulated)
LaForest --> couldnt envisage any circumstances in
which the distinction (and hence admission for a

different purpose) would be appropriate

Court = Crown not permitted to use the prior stmt for
purposes of impeaching credibility
What if...
evidence obtained in violation of Charter
properly excluded
accused testifies in his defence, contrary to prior
statement to police
Can statement be used to impeach accused?
There can be no right

without an effective remedy...

Charter - Section 24(1)
24. (1)
Anyone
whose rights or freedoms, as guaranteed by this
Charter, have been infringed or denied may apply to
a
court of competent jurisdiction
to obtain
such remedy
as the court considers
appropriate and just
in the circumstances.
Constitution Act, 1982 - Section 52(1)
52. (1) The Constitution of Canada is the supreme
law of Canada, and

any law that is inconsistent

with the provisions of the Constitution is,
to the extent of the inconsistency
, of
no force or effect
.
...a tool that may fashion, more carefully than ever,
solutions taking into account the sometimes
complementary and sometimes opposing concerns of
fairness to the individual, societal interests, and the
integrity of the justice system.
- LHeureux-Dube J. in
R v O'Connor
Section 24(1) - "the scalpel"
3 Factors
Guiding Court's Discretion:
o redress of the wrong suffered by the complainant
o encouragement of future compliance with the
Charter
o avoidance of unnecessary interference with
governmental power
Basic Principles
s.24(1)
remedies apply
only to Charter
s. 52(1)
applies to
whole Constitution
must be the
applicant's rights
that have been infringed/denied for
s.24(1) remedy

s.52(1) is available to both people whose rights have

been infringed and those invoking third party rights
Types of Remedies s.24(1)
Declaratory relief
Damages
Costs
Supervisor Orders
Interlocutory stays
Striking down
Reading down
Reading in
Section 52 --> legislation
Section 24(1) --> actions of govt
s.24(1) - "court of competent jurisdiction" =
Superior Court
Trial Court
Administrative Tribunal (possibly)
Appellate courts
Courts created by federal govt
Who may award the remedy?
s.52(1) - may be granted by any body with explicit or
implicit power to determine questions of law
Types of Remedies s.52(1)
Nullification / Striking down
Suspension of nullification
Severance / Reading in
Reading down
Constitutional exemption
Class Exercise...
Consider the following cases:

Eldridge v BC
R v Edwards
Canada v PHS
Canada v Khadr 2008
Canada v Khadr 2010
Vriend v Alberta
What did the court say about remedies? Which one
was chosen and why?
R v Ferguson
Facts:
October 1999 - Darren Varley meets friends, fiance
and sister at bar
Fiance leaves unnoticed. Darren later concerned and
intoxicated. Fight outside bar. Friend needs medical
attention as a result.
At hospital, disappearance of fiance reported to
RCMP.
Constable Ferguson arrives at hospital and arrests
Darren.
At police station, Darren shot fatally by Ferguson
twice in his cell.
Ferguson claimed that Darren attacked him and he
lost control of the gun - approx. three seconds
between the shot to th stomach and the one to the
head
Convicted of manslaughter
Trial judge imposed 2 year less a day conditional
sentence instead of mandatory minimum of 4 years
Issues...
1. Does imposition of the four-year minimum
sentence imposed by the Criminal Code constitute
cruel and unusual punishment contrary to s. 12 of
the Charter in the circumstances of this case?

2. If so, was the trial judge entitled to grant a

constitutional exemption from the four-year minimum
and impose a lesser sentence?
Criminal Code - s. 236
Every person who commits manslaughter is guilty of
an indictable offence and liable.
(a) where a firearm is used in the commission of the
offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four
years...
Constitutional Exemptions
for Mandatory Minimum Sentences
Not an appropriate remedy because:
(1) the
jurisprudence
;
(2) the need to avoid
intruding on the role of Parliament
;
(3) the
remedial scheme
of the Charter; and
(4) the impact of granting constitutional exemptions
in mandatory sentence cases on the values
underlying the
rule of law
.
Section 52(1) vs. Section 24(1)
Challenge to LAW

Challenge to STATE ACTS

City of Vancouver v. Ward
Application to the Facts
Charter violation - s. 8 breached by the strip search &
car seizure
Damages served a functional purpose
No countervailing government factors
Quantum - Substantial damages not required in the
circumstances
1) Proof of a Charter Breach
2) Damages serve a functional purpose
Compensation
Vindication
Deterrence
3) State Raises Countervailing Factors (State negates
appropriate & just)
Alternative Remedies
Concerns about double compensation
Concerns for good government
4) Quantum of Damages
Test for Awarding Damages
Charter violation - s. 8 breached by the strip search &
car seizure
Damages served a functional purpose

No countervailing government factors

Quantum - Substantial damages not required in the
circumstances
Application to the Facts...
Use s.52 to strike the LAW down
Use s.24 to craft a remedy
Section 12: Cruel and Unusual Punishment
Section 12 will be violated when the punishment
prescribed is so excessive as to outrage standards of
decency.
"A reasonable hypothetical example is one which is
not far-fetched or only marginally imaginable as a
live possibility.
Examples:
Criminal Code s.95 - mandatory minimum sentencing
for gun possession
Narcotic Control Act s.5 - mandatory minimum
sentence for importing narcotics
Some History...
Constitution amended in 1982 to include Charter
Effect was to increase law-making power of courts
Charter has more expanded scope than Canadian Bill
of Rights
Constitution Act, 1982
renamed the British North America Act, 1867 (now
called Constitution Act, 1867)
introduced amendments to BNA Act
introduced the Charter of Rights and Freedoms

Class Exercise:
Consensus Building and Human Rights
Right to decent standard of living
Right to healthy, sufficient and nutritional food
Freedom from unreasonable interference with family
Right to safe and healthy environment
Right to use and enjoyment of property
Charter Interpretation: THE PURPOSIVE APPROACH
3 STAGES OF CHARTER CHALLENGE
CHARTER BASICS
Addressed limitations of Canadian Bill of Rights
Increased role of courts and judicial review
Only applies to government laws and actions
Charter Decisions by All Supreme Court Decisions
1981-1989
Charter cases are especially grueling because of
the difficulty of anticipating their longer term
consequences.

Chief Justice Lamer

(e.g. Westendorp v. R, [1983] 1 S.C.R. 43)
Division of Powers vs. Charter Analysis
Is the law a valid exercise of federal or provincial
power?
If yes, does it breach the Charter?
Remedies: Section 24
Anyone whose Charter rights and freedoms have
been infringed may apply to the court for remedy

Remedy appropriate and just in the

circumstances
Exclusion of evidence where obtained in a manner
that infringes or denies Charter rights/freedoms
For exclusion of evidence, must establish that
admission of the evidence would bring the
administration of justice into disrepute
Nature of Charter Rights
Charter - Section 15
15. (1) Every individual is equal before and under the
law and has the right to the equal protection and
equal benefit of the law without discrimination and,
in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
INFRINGEMENT:
Does the law limit a guaranteed right or freedom?
a) Characterize the law (purpose and effect).
b) Determine meaning of the claimed right.
JUSTIFICATION:
Can the government justify the law as a reasonable
limitationdemonstrably justified in a free and
democratic society?
REMEDY:
If the infringement is unjustified, should the court
strike down the law or find some other way to protect
the limited right or freedom?
If the
EFFECT
of a law infringes a Charter right, then the law will be
unconstitutional, regardless of whether its
PURPOSE

is entirely constitutional.
EFFECT OF THE LAW IN CHARTER ANALYSIS
CHARTER INTERPRETATION
In my view, this analysis is to be undertaken, and the
purpose of the right or freedom in question is to be
sought by reference to the character and the larger
objects of the Charter itselfThe interpretation
should bea generous rather than a legalistic one,
aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the
Charters protection.
[
Big M Drug Mart
per Dickson J.]
PURPOSIVE APPROACH
Whether youre on Charter issues or any other
issuesby an act of imagination put yourself in the
shoes of the different parties, and think about how it
looks from their perspective, and really think about
it, not just give it lip service.
Chief Justice McLachlin
CONSCIOUS
OBJECTIVITY
Hunter v Southam
R v Tessling
"The task of expounding a constitution is crucially
different from that of construing a statute. A statute
defines present rights and obligations. It is easily
enacted and as easily repealed. A constitution, by
contrast, is drafted with an eye to the future. Its
function is to provide a continuing framework for the

legitimate exercise of governmental power and,

when joined by a Bill or a Charter of Rights, for the
unremitting protection of individual rights and
liberties. Once enacted, its provisions cannot easily
be repealed or amended. It must, therefore, be
capable of growth and development over time to
meet new social, political and historical realities often
unimagined by its framers. The judiciary is the
guardian of the constitution and must, in interpreting
its provisions, bear these considerations in mind."
Hunter v Southam
a) Is the limit
prescribed by law
?
b) Is the
purpose
for which limit is imposed
pressing
and substantial
?
c) Is the
means
by which the goal is furthered
proportionate
?
1) Does the challenged
law
have the
effect
of
limiting
one of the guaranteed rights?

2) If yes, is the limit a

reasonable
one that can be
demonstrably justified
in a
free and democratic
society?
Should human rights be absolute?
Section 1 = Mack truck???
Charter guarantees rights "subject only to such
reasonable limits as are
generally accepted
in a free and democratic society with a
Parliamentary system
of government.
vs
Charter guarantees the rights and freedoms set out
in it "subject only to such reasonable limits
prescribed by law
as can be
demonstrably justified
in a free and democratic society.
the test
i) Is limit
rationally connected
to
purpose
?
ii) Does the limit
minimally impair
the right?
iii) Is the law
proportionate

in its effect
(
deleterious effects
)?
The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it
subject only to such
reasonable
limits
prescribed by law
as can be
demonstrably justified
in a
free and democratic society
.
Guarantee of Rights and Freedoms
Section 1
NOT SIMPLE COST-BENEFIT ANALYSIS
R v OAKES
OVERRIDE OF RIGHTS
SECTION 33:
33. (1)
Parliament
or the
legislature of a province
may expressly declare in an Act of Parliament or of
the legislature, as the case may be, that the Act or a
provision thereof shall operate
notwithstanding
a provision included in
section 2
or
sections 7 to 15
of this Charter.

(2) An Act or a provision of an Act in respect of which

a declaration made under this section is in effect
shall have
such operation
as it would have
but for
the provision of this
Charter
referred to in the declaration.
Five year
limitation
Re-enactment permitted
Five year limitation would apply to subsequent reenactments
"The Notwithstanding Clause
s.33 not contained in any of original drafts
provinces see Charter as limited their sovereignty
s.33 addressed that issue - provinces (and
Parliament) can get around Charter review of their
legislation
precedent for s.33 in Canadian Bill of Rights and prov
bill of rights (SK, AB, QC) --> but
uniquely Canadian
invention
7 out 10 provinces and Federal Parliament have
never invoked s.33
QC never gave assent to Constitution Act, 1982, or
Charter... out of protest, passed
An Act respecting the Constitution Act, 1982
FORD v QUEBEC
CLASS EXERCISE: ANALYZE SECTION 1

How does the court analyze LIMITATIONS on Charter

rights in each of these cases? Give a very brief
summary of the rights at issuedo NOT go into Part
1 of the analysis (i.e. how the law had the effect of
limiting the right in question). Go straight to Part 2.
2) Is the limit a reasonable one that can be
demonstrably justified in a free and democratic
society?
How does the court apply the test?
Alberta v Hutterian Brethren of Wilson Colony
Greater Vancouver Transit Authority v Canadian
Federation of Students
R v Swain
a) Is there a
valid and applicable override
provision, enacted pursuant to s.33 of the Charter,
that ss. 58 and 69 of the Charter of the French
Language shall operate notwithstanding s.2(b) of the
Charter?
b) Do ss. 58 and 69 of the Quebec Charter of the
French Language, R.S.Q., c. C-11, which require that
public signs and posters and commercial advertising
shall be in the French language only and that only
the French version of a firm name may be used,
infringe the freedom of expression
guaranteed by s. 2(b)?
c)

If there is a limit, is it justified under s1

of the Charter?
ISSUES...
a) Valid override?
b) Infringement of s.2(b) of the Charter?
c) Justification for infringement under s.1?
HELD...
s.33 requires express declaration that an Act or a
provision of an Act shall operate notwithstanding s. 2
or ss. 7 to 15 of the Charter.
prov Act meets form requirements of s.33 and
override provision is valid
no requirement of relationship between the
overriding Act and guaranteed rights
override provision can NOT apply retroactively
Yes. Language is so intimately tied to form and
content of expression that there cannot be true
freedom of expression if there is a prohibition on the
language of choice.
concern about survival of French language is
substantial and compelling
rational connection b/w protecting French language
and ensuring reality through linguistic facade
BUT requirement of using only French not necessary
to achieve that objective
not proportionate... could have tailored legislation so
as to minimally impair freedom of expression (e.g.
French in larger text than other language)
Line of Important Cases...
o R v Big M Drug Mart
o R v Oakes
o R v Morgentaler

o R v Edwards Books and Art

REVERSE ONUS OF NARCOTICS CONTROL ACT (s.8)...
If the Court finds the accused was in
possession
of a narcotic, he is
presumed
to be in possession for the
purpose of trafficking
.
Unless the accused can establish
the contrary, he must be
convicted
of trafficking.
ISSUES...
Is s.8 of the Narcotic Control Act inconsistent with
s.11(d) of the Charter and thus of no force and
effect?
a) Does s. 8 of the Narcotic Control Act
violate s.11(d)
of the Charter, and,
b) If it does, is s.8 a reasonable limit prescribed by
law as can be demonstrably justified in a free and
democratic society for the purpose of s1 of the
Charter?
HELD....

a) Does s. 8 of the Narcotic Control Act violate s11(d)

of the Charter?

b) Is s.8 a reasonable limit prescribed by law as can

be demonstrably justified in a free and democratic
society for the purpose of s.1 of the Charter?
Yes. Denial of right to be presumed innocent is
fundamentally inconsistent with our social values of
human dignity and liberty.

No. Reverse onus clause in s. 8 is not rationally

related to the objective of curbing drug trafficking.
"Values essential to a free and democratic society:
human dignity, social justice and equality,
accommodation of wide variety of beliefs, respect for
cultural and group identity, and faith in social and
political institutions which enhance the participation
of individuals and groups in society."
The test as articulated in Oakes...
onus of proof
on party seeking to uphold the limitation
civil standard --> proof by a
preponderance of probability
prescribed by law
=
actor must have clear legal authority
. (i.e. an act that is not legally authorized can never

be justified under s.1)

Objective of the law must be "of sufficient
importance to warrant overriding a constitutionally
protected right or freedom" (R. v. Big M Drug Mart
Ltd.)
proportionality
requires balancing the interests of society with those
of individuals and groups - 3 elements:
rational connection, minimal impairment, deleterious
effects
Measures must not be arbitrary, unfair or based on
irrational considerations
Should impair the right
"as little as reasonably possible"
The more severe the deleterious effects of a
measure, the more important the objective must be
to be justified.
APPLICATION TO THE FACTS...
Pressing and substantial objective:
Curbing drug trafficking by facilitating the conviction
of drug traffickers is a pressing and substantial
objective.
Proportionality:
i) Rational Connection?
- Would be irrational to infer that a person had an
intent to traffic on the basis of his or her possession
of a very small quantity of narcotics
ii) Minimal impairment?
- Court does not consider because law not justified if

no rational connection.
iii) Deleterious effects?
_ Court does not consider.
THEREFORE, LIMIT NOT JUSTIFIED!
What is a sufficiently important objective?
o e.g. observance of Christian Sabbath not
sufficiently compelling objective (R v Big M Drug
Mart, 1985) but providing a common day of rest for
all workers in the prov is (R v Edwards Books and Art,
1986)
o cannot be ultra vires the enacting body on federal
distribution of powers grounds
o Cost savings cannot justify Charter infringement
(Singh v Minister of Immigration)
o Shifting objectives not permitted
More on "rational connection"...
o Essence of rational connection is a causal
relationship between the objective of the law and the
measures enacted by the law.
o Court has not always insisted on direct proof
because of difficulties in establishing this element.
o e.g. RJR MacDonald common sense connection
between advertising and consumption sufficient to
satisfy the rational connection requirement
A few additional points to remember on s.1...
Freedom of Religion
o Subject to s.1 limitations clause and can also be

suspended if s.33 invoked

o Two elements to this freedom conscience and
religion
o Protects systems of belief that are not theocentric
as well as religious belief/practice in traditional sense
Guarantees everyone the fundamental freedom of
freedom of conscience and religion...
SECTION 2(a)
Religion is not a discrete Constitutional matter
falling exclusively within either a fed or prov class of
subjects (Edwards Books).
Leg concerning religion will be
competent to either level of govt
, depending on the characteristics of the law.
division of powers
RELIGIOUS BELIEF IN SCHOOLS...
CLASS EXERCISE: ANALYZE SECTION 2(a)
Developments in Jurisprudence...
Protected
Religious Practices:
Since 2014, Trinity Western University, a Christian
college in British Columbia, has been locked in a
legal battle over its sexual ethics policy.
Law societies in various provinces voted to deny
accreditation to Trinity Western Universitys law
school which was scheduled to open in 2016
over the colleges traditional view on homosexuality
and its requirement that students sign a community
covenant affirming that romantic relationships
should be confined to one man and one woman.

According to the Bible, sexual intimacy is reserved

for marriage between one man and one woman, and
within that marriage bond it is Gods intention that it
be enjoyed as a means for marital intimacy and
procreation, the school document reads. Honouring
and upholding these principles, members of the TWU
community strive for purity of thought and
relationship, respectful modesty, personal
responsibility for actions taken, and avoidance of
contexts where temptation to compromise would be
particularly strong.
The Law Society of British Columbia rejected the
universitys proposed law school the first Christian
institution of its kind in Canada based on this text,
essentially refusing to recognize its graduates as
lawyers.
Has the Law Society of BC violated the s.2(a) Charter
rights of the members of Trinity Western University?
R v Big M Drug Mart (again...and again... and
again...)
Dickson J.: Freedom of religion includes the right to
manifest religious belief
by
worship
and
practice
...Provided that such manifestations do not
injure others
or affect the
rights of others
to hold and manifest their own beliefs and opinions.

- 1985 - 1986 R v Edwards Books and Art

exception for small businesses do not have to close
on Sundays if observing Sabbath on Saturday
(exemption did not extend to large stores)
law infringed s.2(a) because in effect, imposed econ
burden on retailers who observed Sabbath on
different day (competitive pressure to abandon
Sabbath on different day = abridgment of religious
freedom)
but upheld under s.1 because least drastic means
and minimally intrusive of freedom of religion
[eventually amended to become more inclusive]
freedom of religion
vs
"best interests of the child"
Young v Young
Family law dispute - father not allowed to discuss
Jehovah's Witness religion with children as part of
family court order
Sopinka J.: A
restriction
on religious communication, although imposed in the
best interests of the children, would
offend freedom of religion
unless
it could be shown that the restriction was needed to
avoid a

risk of substantial harm to the children

.
Other justices: Freedom of religion
does not guarantee
any
religious
activity that would
not be in the best interests
of the children (case decided on basis of best
interests of the children).
B.(R.) v Children's Aid Society
Blood transfusion required to save babys life.
Parents refused because contrary to their beliefs
(Jehovahs Witness).
Court:
Right of a parent to choose their childs medical
treatment in accordance with their religious belief is
a fundamental aspect of freedom of religion.
BUT there are
intrinsic limits
to a parents freedom of religion this freedom
does not include imposing religious practices on a
child that threaten the safety, health or life of a child.
AC v Manitoba
14 year old refused blood transfusion due to religious
belief. Under age of consent. Treatment was ordered.
SCC:
No breach
of s.2(a) because "best interests" standard in Act
required court to take into account childs religious

convictions and give increasing weight to childs

wishes as age, maturity and independence
increased.
McLaughlin J (concurring):
Breach
of s.2(a) but
justified
under s.1 to protect life/health of vulnerable young
people.
Binnie J (dissent): If child under 16 found to be
mature enough to make own decisions about
treatment, then
breach
of s.2(a) and
cannot be justified
under s.1.
Syndicat Northwest v Amselem
o Court defined protected religious practice in
extremely
broad
fashion
o Practice need not be part of an established belief
system, or even a belief system shared by some
others --> can be
unique to claimant
o Claimant does not have to perceive practice as
obligatory (
voluntary
expressions of faith equally protected)

o
All that is necessary to qualify a practice for Charter
protection was that claimant sincerely believed that
practice was of religious significance
o Religious belief is intensely personal and can vary
from person to person (test is wholly
subjective
)
o
No expert evidence required
-> claimant only has to demonstrate sincerity of
belief
o Even the
inquiry into sincerity
of belief has to be as
limited
as possible
Issue was right claimed by orthodox Jews to build
temporary dwellings called succahs on the
balconies of their condos in contravention of condo
by-laws, during 9 day festival (Succot)
Multani v Commission scolaire Margeurite-Bourgeoys
(2006)
All the boy had to show was that his personal and
subjective belief in the religious significance of the
kirpan was sincere.
School board regulations breached freedom of
religion.

Failed on Section 1
school safety is sufficient and compelling objective
not minimally impairing
Zylberberg v Sudbury Board of Education (1988)
Canadian Civil Liberties Assn v Ontario (1990)
S.L. v Commission scolaire des Chenes (2012)
Imposed Christian observances on non-Christians and
religious observances on non-believers
Reg not saved by the fact that it was wide enough to
authorize non-Christian prayers and readings
Was not saved by the fact that students could opt out
because there was an element of indirect coercion on
students to participate
o Purpose of regulation was to indoctrinate students
with Christian beliefs
o Regulation was found to be an unconstitutional
attempt to impose majority Christian beliefs on all
school children
o Not saved by the fact that parents can exempt
their kids (might be reluctant to do that out of fear of
embarrassing them in front of their friends)
WHAT ABOUT
Govt funding of denominational schools?
Adler

Teachers opinions outside the classroom?

Ross v New Brunswick School District No. 15 (1996)
Parents might have had a sincere belief that they
needed to impart Catholicism to their children but
their subjective belief about how the school
curriculum would impair that ability to pass on their
faith was not decisive.
Exposing children to a variety of religious facts
simply reflects the multi-cultural reality of Canadian
society. While it may be a source of friction, not an
infringement of parents freedom of religion.
Other contexts...
Alberta v Hutterian Brethren of Wilson Colony
Can religious groups be exempted from photo
requirements on prov driver licenses?
NOPE!
Hutterian Brethren had sincere religious belief that
photos were forbidden protected by s.2(a).
However, universal photo reqt justified under s.1 -->
served an important purpose and did not impose a
severe burden on the claimants. They could avoid
the reqt by finding another means of transport.
Therefore, reqt was a reasonable limit on their
freedom of religion.
marriage
Polygamy Reference
Ref re Same Sex Marriage
Re Marriage Commissioners

Crim Code prohibition was a limitation on a

constitutionally protected religious practice of
polygamy, but one that was justified under s.1 (harm
to women in polygamous communities and to men
left without spouses justified the limit).
Guarantee of religious freedom under s.2a was broad
enough to protect religious officials from being
compelled by the state to perform civil or religious
same-sex marriages that are contrary to their
religious beliefs. Compulsory use of sacred places for
the celebration of such marriages would also be
forbidden by s.2(a).
Even though requiring marriage commissioners to
solemnize same sex marriages might impair their
freedom of religion, the balancing in s.1 justified
yielding to a larger public interest, namely the
impartial and non-discriminatory delivery of public
services.